SeaWorld and Kavanaugh’s Missing Empathy Gene

President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, listens to a question on the third day of his Senate Judiciary Committee confirmation hearing on Capitol Hill

While the nation focuses on Christine Blasey Fox’s allegations against Brett Kavanaugh, let’s not forget his judicial record. Kavanugh’s opinion in a case involving a SeaWorld employee whom an orca whale pulled into the water and killed is a remarkable document. It’s remarkable because Kavanaugh shows far less sympathy to the whale trainer who was dismembered and killed than he shows to SeaWorld for being the victim of what he sees as government overregulation and overreach.

While we’ve heard much about Kavanaugh being a nice guy who coaches a girls’ basketball team, he, at least in his SeaWorld opinion, seemed to lack an empathy gene. Kavanaugh was so fixated on a subject that preoccupies him—government regulation (or should we say overregulation)—that he hardly focused on the problems that led to the death of the whale trainer. Dawn Brancheau, a 40-year-old native of Indiana, was killed in 2010 by a 12,000-pound, 22-foot killer whale as hundreds of SeaWorld customers in Orlando, including parents and small children, watched.

The federal Occupational Safety and Health Administration (OSHA) fined SeaWorld $70,000 for not taking “reasonable” steps to protect Blancheau from “recognizable hazards.” This was not the first death that the whale, Tilikum, was involved in—it had killed a trainer at a marine park in Vancouver—and OSHA concluded that SeaWorld could have prevented Blancheau’s death by using a barricade or greater distance to separate her from the orcas’ pool. When that case. SeaWorld v. U.S. Secretary of Labor Thomas Perez, went before the U.S. Court of Appeals in the District of Columbia in 2014, two judges—one was Merrick Garland—called for upholding OSHA’s fine, while Kavanaugh dissented, saying that OSHA had no business fining SeaWorld.

For Kavanaugh, the issue wasn’t what should SeaWorld have done to prevent Brancheau’s death or how could federal regulation have best helped prevent her death. Instead, the overriding issue for Kavanaugh was whether OSHA should even be regulating a company like SeaWorld. Kavanaugh asserted that OSHA should not be regulating sports or entertainment activities, saying it would be foolish, for instance, for OSHA to seek to limit injuries in professional football or NASCAR racing.

Although Kavanaugh describes himself as a “textualist” who follows the text of statues, he sought to create out of whole cloth an exemption from safety regulation for “entertainment activities” even though the Occupational Safety and Health Act of 1970—passed by a bipartisan majority and signed by Richard Nixon, a Republican—states that the law applies to “each employer.” The act calls on every employer to “furnish to each of [its] employees” work that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Writing that OSHA would never regulate football or NASCAR racing, Kavanaugh argued that since OSHA can’t explain why it wouldn’t regulate those “sports and entertainment activities,” but had opted to regulate SeaWorld, it was arbitrary and capricious and therefore illegal for OSHA to regulate SeaWorld. Kavanaugh glosses over the fact that Brancheau’s work at SeaWorld was not a competitive sport, like football or hockey, where injuries are inevitable.

Moreover, Kavanaugh disingenuously overlooks the fact that OSHA has a long history of regulating job safety in many entertainment industries, including circuses, zoos, water parks, carnivals, amusement parks and Broadway theaters—even Walt Disney parades and reenactments of Old West-style gunfights. (Kavanaugh also argued that OSHA regulation shouldn’t be permitted at SeaWorld on the bewildering ground that OSHA would totally prohibit SeaWorld’s orca shows, even though OSHA made explicitly clear that those shows could go on, but with better protections for workers.)

In his SeaWorld opinion, Kavanaugh, who went to an elite prep school, college and law school, seemed out of touch with how workplaces function and how job safety laws work. He wrote that sports industries like the NFL and NASCAR are responsible for regulating their own safety situation, and he said the same should be true for SeaWorld. Kavanaugh showed little inkling or concern that at many companies, workers have hardly any say or power to improve safety.

Kavanaugh also showed little understanding that OSHA was enacted because lawmakers saw a need for government involvement to help assure safety in all workplaces. Kavanaugh turns OSHA on his head, asking “when should we as a society paternalistically decide” that participants in entertainment activities “must be protected from themselves.” He forgets that Congress, in enacting the OSHA law, answered that question—and called on all employers to protect their employees. (The law doesn’t mention any exemption for entertainment industries.)

Kavanaugh essentially writes, not to worry if OSHA can’t intervene to assure safety at SeaWorld. He said that state tort law—for instance, lawsuits that workers bring against their employer because a machine chopped off an arm—would pressure SeaWorld to assure safety to its workers. But Kavanaugh bafflingly fails to realize that the workers compensation system was set up in the early 1900s in large part to prohibit workers from filing tort lawsuits against their employers. Moreover, state tort law compensates employees only after an arm is amputated or a worker is crippled, while government regulation in the form of OSHA aims to prevent such horrific injuries from ever happening.

In likening Dawn Brancheau to NFL players and NASCAR drivers, Kavanaugh essentially embraced a pro-corporate legal doctrine that was prevalent in the 19th century—that workers assume the risks inherent in a dangerous job. In other words, if Brancheau got killed or injured, well, tough luck. It’s on them. David Michaels, the head of OSHA under President Obama, criticized Kavanaugh for making “the perverse and erroneous assertion that the law allows SeaWorld trainers to willingly accept the risk of violent death as part of their job.” Kavanaugh ignores one of the central purposes of OSHA: to discard the archaic idea of assumption of risk and instead make sure that every employer takes action when there are risks of serious injury or death for employees.

It’s hard to believe that American workers, including the many blue-collar workers who voted for Donald Trump, would want someone on the Supreme Court who has such archaic, unsympathetic views on worker safety.